To clarify my post from last week, the delegation of military policy on the part of Congress isn’t unlimited. Presidents have a very wide range of action when it comes to having the military do things. On the rare occasions on which the president gets to the left of Congress on civil liberties, Congress can normally be counted on to bestir itself for some rare action to oppose it.

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Not only did Brennan refuse to call torture torture, he said torture might be legal because Bush’s lawyers said it was. This second part of his answer didn’t get much attention, but it was even worse than the first:

LEVIN:
Well, you’ve read opinions as to whether or not waterboarding is torture. And I’m just — I mean, do you accept those opinions of the attorney general? That’s my question.

BRENNAN:
Senator, you know, I’ve read a lot of legal opinions. I’ve read an Office of Legal Counsel opinion in the previous administration that said in fact waterboarding could be used.

So from the standpoint of — of that, you know, I cannot point to a single legal document on this issue.

But as far as I’m concerned, waterboarding is something that never should have been employed and — and — and as far as I’m concerned, never will be, if I have anything to do with it.

LEVIN:
Is waterboarding banned by the Geneva Conventions?

BRENNAN:
I believe the attorney general also has said that it’s contrary, in contravention of the Geneva Convention.

Again, I am not a lawyer or a legal scholar to make a determination about what is in violation of an international convention.

The guy tells you he’s not a lawyer and can’t speak to the legal issues, but nevertheless, waterboarding should not have been used and will not be used on his watch. YOu read this as somehow endorsing waterboarding?

Why put words in my mouth? I didn’t say he endorsed waterboarding; he’s clearly equivocating on its legality. That might be good enough for you. It shouldn’t be. Panetta, in his hearing, said torture was torture, why doesn’t Brennan?

He’s presumably worried that his former colleagues and future employees — and perhaps he himself — will get prosecuted for their war crimes (I don’t why he’s worried but) so he refuses to call water-boarding torture and even cites a torture-era OLC memo as evidence that it might be legal. Nothing to see here, keep it moving…

I imagine that he’d never read an OLC memo stating that “crushing someone’s testicles” wasn’t torture. The disagreement between top lawyers of two successive administrations might cause a non-lawyer to demur.

What the man is, in fact, telling Sen. Levin is that he doesn’t care how many lawyers try to rationalize waterboarding as legal and consistent with the Geneva Convention–he’s not going to allow it. But in Mizner World, such statements are a betrayal of all that’s decent.

You have a curious notion of how the law works–waterboarding is wrong; therefore is must be illegal under US statutes as presently drafted. Waterboarding is plainly “torture” within the ordinary meaning of the term–therefore it’s “torture” under the techncial meaning of the term as specially defined in the statute.

And of course, the whole problem here is that the last administration was stocked full of people who were okay with waterboarding provided they had some reassurance, in the form of a memo from a lawyer with decent credentials, that it did not technically violate the law. I would have thought that you would embrace the guy who doesn’t care about technical legalities–it’s wrong and he isn’t going to do it. But, apparently not . . .

Crushing someone’s testicles certainly seems like it should be torture, but I don’t think there’s anything particularly wrong with remaining agnostic on saying it officially is. The law is mysterious and stupid, and there’s absolutely nothing wrong with remaining cautious.

The Congressional uprising against moving the Gitmo detainees to Illinois was one of the weirder things I’ve seen in government. It’s as if there was going to be a criminal conspiracy revealed, and all the rats got into line to make sure that it never happened.

Of course, we no longer have a 4th, 5th, or 14th amendment, so I don’t know what the oligarchs in DC are so concerned about.

It’s as if there was going to be a criminal conspiracy revealed, and all the rats got into line to make sure that it never happened.

Since moving the prison from an extra-territorial location to one within the US would have significantly expanded the rights of the people being held to argue in court, perhaps that’s exactly what happened. And then, with the fight over the proposed KSM trial in New York happening at the same time, they had the chance to set off a terror stampede to kill it.

Never forget why the Bushies decided that it was important to have an off-shore prison.

While you’re right that the Bush Administration wanted GITMO because they thought its extraterritoriality left it outside U.S. jurisdiction, the Court established otherwise (in Rasul in 2004 and Boumediene in 2008) before the question of closing the facility and relocating the detainees was put before Congress. If Congress was worried about detainees getting more rights, that horse already left the barn.

The explanation that best fits the facts and the debate is that Republicans wanted to extract some quantity of blood from the administration early, and the easiest way to do that would be to make a campaign promise politically unworkable. It was NIMBY taken to its most illogical conclusion, demagogically shouting “OBUMMER IS PUTTING TERRISTS IN YER BACKYARD” while Al-Qaeda operatives like Ramzi Yousef have been locked up in ADX Florence for years.

Rasul reaffirmed that territorial jurisdiction was derived from the location of the custodian and not of the detainee, and Boumediene established that jurisdiction applies where “de facto” sovereignty exists.